601 West 26 Corp. v. Equity Capital Co., s. 64-1012

• Decision Date: 12 October 1965
• Docket Number: Nos. 64-1012,64-1033,64-1035,s. 64-1012
• Parties: CORP., a/k/a 601 West 26 Corporation, a New York corporation, authorized to do business in the State of Florida, and Trunk Corp., a/k/a Trunk Corporation, a Florida corporation, Appellants, v. EQUITY CAPITAL COMPANY, a Minnesota corporation, Appellee.
• Court: Florida District Court of Appeals

Page 894

178 So.2d 894

601 WEST 26 CORP., a/k/a 601 West 26 Corporation, a New York corporation, authorized to do business in the State of Florida, and Trunk Corp., a/k/a Trunk Corporation, a Florida corporation, Appellants, v. EQUITY CAPITAL COMPANY, a Minnesota corporation, Appellee.

Nos. 64-1012, 64-1033, 64-1035.

District Court of Appeal of Florida, Third District.

Oct. 12, 1965.

Kenneth L. Ryskamp, Miami, for appellants .

Schonfeld & Feldman, George J. Baya and Stewart D. Allen, Miami, for appellee.

Before HENDRY, C. J., and CARROLL and BARKDULL JJ.

PER CURIAM.

This cause was originally submitted to this court by an appeal which resulted in an opinion and decision of reversal, reported as 601 West 26 Corp. v. Equity Capital Company, Fla.App.1965, 174 So.2d 626, which opinion concluded with the following language:

'Accordingly the foreclosure decree of October 8, 1964 and the supplemental decree of October 20, 1964, increasing the amount thereof are affirmed. The order of November 10, 1964, denying the objections of defendants and confirming the foreclosure sale is reversed; and the cause is remanded to the circuit court with directions to make provision for a resale at plaintiff's cost under the foreclosure decree of October 8, 1964, as amended by the order or decree of October 20, 1964.'

Subsequent to the mandate of this court issuing on said opinion, the chancellor held proceedings purportedly on a motion to set down terms and conditions of foreclosure sale and, thereafter, entered an order on July 16, 1965, entitled 'Order Amending Partial Final Decree of Foreclosure and Setting Terms and Conditions of Resale', wherein he increased the amount of the final decree of October 8, 1964, as amended on October 20, 1964, by an additional $96,654.12 consisting of some allowable items and many which are not allowable.

On consideration of the motion and response thereto and the briefs and arguments of counsel, we hold the trial court's order of July 16, 1965, which increased the amount of the final decree by more than $96,000, was not in compliance with the previously issued mandate of this court which had directed that the mortgaged property be resold on the prior decree of October 8, 1964, as amended by the order or decree of October 20, 1964. It is therefore ordered that the trial court's said order of July 16, 1965, be and it hereby is quashed and set aside.

However, appellees have called our attention to the case of Bridier v. Burns, 148 Fla. 397, 587, 4 So.2d 464, 853, from which we conclude that the simple direction in our previous mandate for resale on the basis of the original decree was inadequate and requires modification because it did not take into consideration the matter of possession pending a new foreclosure sale, and the need for accounting between the parties with respect to charge and credits subsequent to the original decree, to be determined prior to resale.

In Bridier v. Burns, supra, a similar situation was presented. There the Supreme Court set aside an improper foreclosure sale and directed resale on the basis of the original decree. See Bridier v. Burns, 145 Fla. 642, 200 So. 355. Subsequently one claiming under the mortgagors moved for an order to compel compliance with the mandate, contending the chancellor improperly refused to return possession to mortgagors pending the resale. The motion also sought direction for an accounting as to rents and credits prior to resale. In ruling thereon (4 So.2d 853) the Supreme Court held the mortgagors were entitled to possession pending resale, and also directed the requested accounting.

As to possession, the Supreme Court said:

'When the special master's deed and the order confirming the delivery thereof were held invalid, the owner of the equity of the redemption was entitled, in the absence of some lawful reason, to the possession of the mortgaged premises. The petition filed in the lower court for an order of restitution appears to be fully sustained by the record and it was error on the part of the chancellor or deny said petition. * * *'

The Supreme Court then directed the chancellor as follows:

'* * * [T]he chancellor below is directed (a) to carry out the mandate of this court previously issued in this cause and in so doing he is hereby directed to make and enter an order instanter restoring the possession of the mortgaged premises to H. E. Orr, the owner of the equity of redemption, and to issue process necessary to render effective the order of restoration.' Regarding accounting, the court said:

'Counsel for movant insist that the order of November 4, 1941, should be modified, because, as it now stands, confusion and uncertainty exist and it creates a hardship on all the parties; that the Hansards, if a resale is had immediately, will become, because of the circumstances, preferred bidders, and possess an advantage over all others in that they went into the possession of the property and collected large sums of money in the form of rents and profits; claim and assert large sums of money are due them for betterments to the property made in good faith, and that an adjudication thereof by a court has not been or the amount made known to other bidders; that all bidders at the resale should stand on the same level and a decree of the court...